Sunshine Report for March 2024


the month that was
february '24

The City of Richmond has been in the spotlight with FOIA problems for several months in a row, and February continued the trend. Keep reading to find out what problems cropped up last month. The General Assembly session moved through crossover and is now just over a week away from ending. VCOG's annual conference has been taking shape, and there were more open-government and access-related stories than you can shake a stick at. We packed a lot into just 29 days!


FOIA in Richmond

FOIA compliance and transparency issues persisted in the state's capital city throughout January. Last month, Richmond Public Schools faced a court order to release a report, prepared by an external law firm, delving into the details of the graduation-day shooting outside the Altria Theater. The preparation of this report, coupled with the school division's efforts to maintain secrecy, incurred a cost exceeding $88,000, as indicated by an invoice from the Sands Anderson law firm.

The city found itself in legal trouble as two activists filed a lawsuit against it, citing a failure to promptly respond to FOIA requests concerning records related to the well-documented challenges in implementing the meals tax.

Internal emails obtained by a television reporter revealed resistance from high-level city employees against providing records, even to the FOIA officer. The officer had been urging colleagues to furnish answers or documents in a timely manner to comply with FOIA's deadlines.

Adding to the challenges, the city removed the staff directory from its website last week, stating that the action was necessary to clean the site of outdated information. The city also justified the removal out of concern that the contact information could be exploited for phishing attempts to obtain other potentially sensitive information.

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Join us April 18 in Yorktown for our annual conference, which will feature a panel on AI and the open records process, a presentation on transparency at the General Assembly then and now, and remarks from the newly installed Librarian of Virginia.

Visit the website for to register or become a donor, and to stay up to date with the panels and panelists as they develop.

General Assembly update

Hooray! Two bills that VCOG initiated have been unanimously approved by both chambers and are on their way to the governor's desk for signature!

Del. David Bulova (D) carried HB 69, which tries to make the process for filling a vacancy on a local government or school board body more consistent and transparent. Sen. Saddam Salim (D) carried SB 340, which clarifies that an employee name on a credit card statement is not a "security control" that can be redacted.


Unfortunately, the resolution that Del. Amanda Batten (R) carried for us to require the FOIA Council to study the FOIA fee structure was killed on an unrecorded voice vote (the irony!). Then again, on the bright side, Sen. Danica Roem (D) picked up some of the resolution's language and inserted it into an enactment clause for her bill on fees. So it does look like there will be some sort of discussion on FOIA fees in the coming months. Another hooray!

Only two bills on our high-priority list are still undecided. Ironically, they are two of the bills that came out of the FOIA Council process, a process I've been critical of because of the few opportunities stakeholders actually have had to engage with the council and each other over the past few years.

They both have to do with the fallout from the Supreme Court case in Gloss v. Wheeler, which took five members of the Prince William County Board of Supervisors to task for meeting with police and community leaders without the remaining three members to talk about police response to then-ongoing protests over the murder of George Floyd.

One is a bill that seeks to clarify when members of a public body can meet at community events without triggering FOIA's notice and minute-taking obligations. It took us a while, but VCOG, the Virginia Press Association and local government groups finally came to an agreement. The bills -- carried by Del. Mike Cherry (R) and Sen. Mamie Locke (D) -- will head to a conference committee, where we've offered a group draft proposal.

The other bill (carried by Sen. Richard Stuart (R)) would apply just to attendance at local political party meetings. It essentially endorses local caucus meetings, and though it passed the Senate, some in the House felt it needed a second look. The bill's fate is unknown at this time.

As usual, VCOG also found itself pulled into various different bills on a wide variety of topics because FOIA was a small part of a larger bill. Read my piece here to see how I balance being both an advocate and a lobbyist.

FOIA Council
recent opinions


Upon a receipt of a request, a public body must respond in accordance with the established provisions and timeframes in § 2.2-3704(B). Considering the policy of FOIA and the legal duties it imposes, there is a presumption of good faith that a custodian of records will obey the law in carrying out their duties by searching for and providing all records as requested unless the records are exempt or prohibited from release. FOIA is intended to be a non-adversarial process for obtaining information.


Under what circumstances does a pro se petitioner becomes eligible to obtain reimbursement of attorney fees after hiring an attorney to represent the petitioner in a FOIA matter or during the appeal process. A court would have to determine that a petitioner's rights and privileges were denied in violation of law, that the petitioner had substantially prevailed on the merits of his case, and there were no special circumstances that would make awarding fees and costs unjust.


A public body shall not be required to create a new record if the record does not already exist; however, a public body is required to provide to a requester, unless otherwise specifically provided by law, a public record in the medium requested if the public record is identified with reasonable specificity and if that medium is used by the public body in the regular course of business. A locked Excel spreadsheet of the budget would be appropriate only if an unlocked version is not used in the regular course of business.

Updates Placeholder Image

open government in the news


The Piedmont Environmental Council dropped its FOIA lawsuit against Orange County when the county finally released the non-disclosure agreements signed by all eight members of the board of supervisors and two other local officials with Amazon regarding a proposed data center.

The Youngkin administration launched a website allowing the public to track the status of government permits. The site currently tracks permits issued by the Department of Environmental Quality, the Department of Energy and the Virginia Marine Resources Commission. Permit records from the Virginia Department of Health, Department of Transportation and Department of Conservation and Recreation will go live this summer.

After new members were sworn in and the chair started the meeting with a prayer, instead of the previously traditional moment of silence, the Rockingham County School Board received two letters: one from the Freedom from Religion Foundation, and one from the First Liberty Foundation, each espousing opposite views of the constitutionality of the change.

The Augusta County School Board unanimously voted to provide the agenda packets along with the agenda every month. The idea was floated by the board's newest member who said, "I continue to be concerned about the spirit of the Freedom of Information Act."

A member of the Purcellville Planning Commission had some choice words for the town council, which took a vote he did not agree with: "F– this town,” he said. “We pay taxes in this town, too, assholes.” He later resigned from the commission.

New Kent County had to re-do its decision to appoint someone to a vacant seat after Attorney General Jason Miyares got involved. Miyares pointed out that the board's selection of a replacement was improper because it was made by the previous make-up of the board of supervisors when it should have been made by the body as reconstituted at the start of the year.

The families of crime victims -- and victims themselves -- said they were shorted by a General Assembly subcommittee when their opportunity to testify in opposition to a bill was abruptly ended. They are not the only ones who have fallen prey to committee chairs who impose strict, but not always consistent, time limits on public comment in order to stay on schedule with the multitude of bills they have to get through.

As of the first week in February, Augusta County had spent nearly $6,000, which represents 23.9 hours of work at $250 an hour, to pursue its appeal of a judge's ruling telling them to disclose a recording one of its board members made in a closed session and finding fault with a motion to go into closed session.

The City of Chesapeake and the Town of Bedford contemplated imposing state-level rules on their localities. Chesapeake considered requiring the disclosure of all companies, firms and individuals hired to lobby the city council and planning commission on land-use and development matters. Bedford is exploring an ordinance that would essentially make the town subject to the Virginia Campaign Finance Disclosure Act even though the act doesn't apply to elections in towns with fewer than 25,000 people and amounts under $25,000.

Student reporters with The Breeze newspaper at JMU pushed back against a senior vice president who told them "this is not how FOIA works," when the reporters correctly pointed out that a public body -- in this case, the Student Government Association -- cannot enter into a closed meeting without first convening a public meeting.


A Bedford County judge granted an injunction to a Georgia resident barring the county sheriff's office from releasing records about a 2018 Forest murder to a Georgia-based true-crime podcaster. Revisions made to FOIA in 2022 instituted the injunction procedure that allows victims or their families to file suit to stop release of closed investigative files police or prosecutors might have contemplated disclosing.

Planning materials submitted to Chesterfield County by a Northern Virginia developer propose a 2.4-million-square-foot industrial project but do not identify a tenant or a definitive construction timeline or cost. But it does have a code name: Project Gale. Alexandria held back records related to the plan to bring the Washington Wizards and Capitals to Virginia. Local lawmakers referred to the plan as Project Potter during the open portion of a city council meeting.

After public comment by citizens opposed to a development proposal turned salty, including the opinion of one speaker that council members were suffering from "a lack of oxygen because you have your head so far up the developer’s abacus," Alexandria's mayor pleaded, "Please, guys, literally come on. I spent like an hour with a bunch of preschoolers yesterday and they were better behaved than this.”

A member of the Frederick County School Board made it clear she wasn't happy that the joint work session of the school board and the board of supervisors was not being recorded. This "does nothing" for transparency, she said.

Through a FOIA request, WTVR obtained the body-worn camera footage taken by Richmond Police during their altercation with a man under a court order to receive involuntary psychiatric treatment and medical staff just 36 hours before the man was killed in an encounter with Chesterfield police.

Dysfunction among the three Pittsylvania County Electoral Board members continued when they couldn't agree on who the chair of the meeting was. The two Republican members walked out of the first organizational meeting in January without electing a chair, so when the Democratic member (who was the previous chair) attempted to convene the February meeting, one of the other two immediately asked whether she had the authority to do that since she hadn't been elected chair for the new year. He then declined the previous chair's nomination for him to take over the chairmanship. After more back-and-forth, the previous chair was again nominated and elected to the position.

Accomack County and York County school board members argued over where the districts' superintendents should sit during school board meetings. Though Accomack's superintendent has typically sat among the board members on the dais, a new member said it would create a "separation between the governing body and the administration" if she would sit nearby instead. A new member in York County likewise said that it creates "perception" concerns to have the superintendent sitting with the board members.

According to emails obtained through FOIA, members of the Roanoke City Council internally discussed launching an investigation into the leak of the resignation letter penned by the departing director of the parks department. "If we can determine how this happened, measures should be taken to prevent future breaches of personnel information and appropriate disciplinary actions should be taken," one member said. Council members now say the issue is moot.

A member of the Appomattox County Board of Supervisors expressed frustration over the way the director of public safety was let go. "I think coming out of closed session, it should be a roll call vote, and that the citizens of the county should be able to know where we stand," the member said.


Virginia Coalition for Open Government

P.O. Box 2576
Williamsburg VA  23187